Wednesday, June 20, 2007

I just finished reading Mad Sheep: The True Story Behind the USDA's War on a Family Farm, a really sad, but inspiring book by Linda Faillace. In this book, Faillace recounts her family's experience starting a sheep dairy in New England. The oddity of sheep milking aside, she tells a story of the ideal family farm, the same family farm that I was beginning to question even existed, complete with a happy family, barns, wooly sheep, a llama and a lassie dog. By the end of chapter two I was ready to start a sheep farm myself. Alas, Faillace's happy story only lasts until the USDA enters the picture on a cockamamie mission to eradicate Vermont of all European-born sheep and their progeny under the pretense that these sheep might have mad cow disease. hmm. This is especially bizarre since no sheep has ever contracted mad cow disease, except in one laboratory study where BSE (the scientific acronym for mad cow disease) was actually injected into a sheep's brain. I feel pretty safe in saying that politics, not science, was driving the USDA.

Reading Mad Sheep made me cringe at the amount of power the USDA could wield all by itself. Neither the three official branches of government nor the states provided enough balance. I wonder if Vermont even had the wherewithal to provide shelter to this local farm. Based on the book, I don't think the state helped out much. State troopers stood by the family as the USDA seized their sheep, but beyond that, Vermont was largely absent from the debate. My first thought is that Vermont might have been able to enact a law providing some protection to family farms, but I imagine that any law that directly protected the Faillaces or similar farms would have been preempted by existing federal law, depending on how fully federal law has occupied the field. Vermont might have had some options I'm not aware of, but I don't think the state really could do much besides lobby on the Faillace's behalf.

Recent Commerce Clause jurisprudence is further exacerbating this imbalance of power between the state and federal governments. Under the Commerce Clause, the federal government can legislate on most any topic and unleash federal agencies to promulgate all sorts of related regulations. Cases such as Lopez only limit Congress to topics that "substantially affect" commerce. I really can't think of many agricultural topics that don't fall under Congressional authority given this test.

Given the fed's expansive powers to legislate, it is troubling that the courts are restraining states' ability to regulate agriculture under the dormant Commerce Clause. Based on recent judicial decisions in the Eighth Circuit (Jones v. Gale, Smithfield and Hazeltine) states have very little room to legislate to protect family farms. In Jones, the court found a Nebraska constitutional provision to be facially discriminatory against out-of-state business. This is strange since the provision only privileged those who work or live on a family farm, but did not explicitly mention out-of-staters. The court was all-too-willing to infer discrimination, thus limiting Nebraska's ability to protect family farmers. Including Jones, states have now failed to defend anti-corporate farming laws 3 out of 3 times. With expansive federal powers and shrinking state power, farmers are really at the mercy of the USDA. Stories such as Linda Faillace's demonstrate the danger in this distribution of power.

As a law student (at least for one more month) I find this broad grant of power to agencies especially troubling. Take for instance the USDA's head-up-their-hindquarters decision regarding the Vermont sheep - in this case, agency actions were practically unassailable in the courtroom. Time after time the court deferred to the USDA under the APA's arbitrary and capricious standard. Theoretically, such a high degree of deference is a fine idea. After all, the USDA should have the expertise and experience to make better decisions about agriculture than a court. Furthermore, a court might not be able to fully understand mad cow disease and the various tests scientists use to detect it, at least not well enough to make informed decisions. However, if the judiciary isn't checking administrative agencies in a meaningful way, we have a system of "checks and balances" in name only. With administrative agencies doing most of the heavy lifting in the U.S., somebody ought to be checking up on them.

To sum up my (hopefully pessimistic) version of U.S. government: 1) there is a growing imbalance of power between the states and federal government, in favor of the feds, and 2) there is an imbalance of power between the 3 (or 4 maybe) branches of government because the judiciary is not willing to meaningfully second guess agencies. What this adds up to is free rein for government agencies. Because agencies are so vulnerable to industry capture, this also means too much free rein for corporate America. Hence, the Faillace's persecution by the USDA, a.k.a. the National Cattlemen's Beef Association.

1 Comments:

Samantha's comments are "Right on the money". Her concerns are well stated and should be taken to heart by all of us. In this country we enjoy many freedoms, but it seems that our democracy is failing to protect us from our own government. Through powerful lobbyists and corrupt officials, powerful corporations are writing their own laws or circumventing existing ones. Most of our agencies such as the FDA, USDA and EPA, have many concientous and dedicated scientists and workers. It is a crime to see their recomendations pushed aside by politically appointed directors. Case in point, the FDA's policy statement that genetically engineered foods are equivalent to conventional foods and therefore require no testing. This absurd statement was made in the face of their own scientists stating that that they were vastly different with unknown risks. It is apparent that we need some sort of oversight over these agencies, when they lean to protecting corporate interests above that of the public safety and when they trample on our freedoms. Thomas Jefferson said that the price of freedom is eternal vigilance. We must urge our elected officials to protect our presious freedoms, that our forefathers fought so valiently to preserve. I had the pleasure to meet Linda and Larry Faillace and the sadness to hear their unbelievable story. It is hard to comprehend how the USDA could justify dseliberately lying to them and stating that some of their sheep had tested positive for mad sheep disease, when they later found out throught the Freedom of Information Act that all the tests were negative. This is unforgivable and borders on the actions of a Fascist state. Every public official should be required to read the book "Mad Sheep".